Current Status Introducing Body:Senate Bill Number:1286 Primary Sponsor:Land Committee Number:11 Type of Legislation:GB Subject:Uninsured Employers' Fund Residing Body:Senate Current Committee:Judiciary Computer Document Number:1286 Introduced Date:19940322 Last History Body:Senate Last History Date:19940322 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Land Saleeby Type of Legislation:General Bill
Bill Body Date Action Description CMN Leg Involved
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1286 Senate 19940322 Introduced, read first time, 11
referred to Committee
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TO AMEND SECTION 42-7-200, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE WORKERS' COMPENSATION UNINSURED EMPLOYERS' FUND, SO AS TO GIVE THE FUND SUBPOENA POWER WHEN A CLAIM IS BROUGHT AGAINST AN UNINSURED EMPLOYER AND TO PROVIDE THAT THE WORKERS' COMPENSATION UNINSURED EMPLOYERS' FUND MAY SEEK REIMBURSEMENT FROM THE SHAREHOLDERS OF A CORPORATION WHICH FAILS TO PAY, OR IS UNABLE TO PAY, A CLAIM BROUGHT UNDER THIS SECTION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 42-7-200 of the 1976 Code is amended to read:
"Section 42-7-200. (A) There is established within the office of the Second Injury Fund the South Carolina Workers' Compensation Uninsured Employers' Fund to ensure payment of workers' compensation benefits to injured employees whose employers have failed to acquire necessary coverage for employees. The fund must be administered by the director of the Second Injury Fund who shall establish procedures to implement this section.
When an employee makes a claim for benefits pursuant to Title 42 and the State Workers' Compensation Commission determines that the employer is subject to Title 42 and is operating without insurance or as an unqualified self-insurer, the commission shall notify the fund of the claim. The fund shall pay or defend the claim as it considers necessary in accordance with the provisions of Title 42.
When the fund is notified of a claim, the fund may place a lien on the assets of the employer by way of lis pendens or otherwise so as to protect the fund from payments of costs and benefits. If the fund is required to incur costs or expenses or to pay benefits, the fund has a lien against the assets of the employer to the full extent of all costs, expenses, and benefits paid and may file notice of the lien with the clerk of court or register of mesne conveyances of any county in which the employer has assets in the same manner as the filing of South Carolina Tax Liens and with the Secretary of State in the same manner as utilized under Title 36 (Uniform Commercial Code). Any of the employer's assets sold or conveyed during the litigation of the claim must be sold or conveyed subject to the lien.
The fund has all rights of attachment set forth in Section 15-19-10 and has the right to proceed otherwise in the collection of its lien in the same manner as the Department of Revenue and Taxation is allowed to enforce a collection of taxes generally pursuant to Section 12-49-10, et seq. When all benefits due the claimant, as well as all expenses and costs of litigation, have been paid, the fund shall file notice of the total of all monies paid with the clerk of court in any county in which the employer has assets and with the Secretary of State. This notice constitutes a judgment against the employer and has priority as a first lien in the same manner as liens of the Department of Revenue and Taxation, subject only to the lien of the Department of Revenue and Taxation pursuant to Section 12-49-10, et seq. If the employer files for bankruptcy or otherwise is placed into receivership, the fund becomes a secured creditor to the assets of the employer in the same manner as the Department of Revenue and Taxation has priority for unpaid taxes, subject only to the lien of the Department of Revenue and Taxation. The fund otherwise has all rights and remedies afforded the Department of Revenue and Taxation as set forth in Section 12-54-10, et seq.
(B) Nothing in this section precludes the South Carolina Workers' Compensation Uninsured Employers' Fund from entering into an agreement for the reimbursement of expenses, costs, or benefits paid by the fund. If an agreement is reached pursuant to this subsection, a lien must not be filed as provided in Section 42-7-200(A). If an agreement is entered into subsequent to the filing of a lien, the lien must may be canceled by the fund. Provided, however, an agreement between the fund and an employer under this section may provide that in the event the employer breaches the terms or conditions of the agreement, the fund may file or reinstate a lien, as the case may be. For purposes of this section, the term `costs' includes reasonable administrative costs which must be set by the director of the Second Injury Fund, subject to the approval of the Workers' Compensation Commission.
(C) To establish and maintain the South Carolina Workers' Compensation Uninsured Employers' Fund, there must be earmarked from the collections of the tax on insurance carriers and self-insured persons provided for in Sections 38-7-50 and 42-5-190 an amount sufficient to establish and annually maintain the fund at a level of not less than two hundred thousand dollars.
(D) When an employee makes a claim for benefits pursuant to Title 42 and the records of the South Carolina Workers' Compensation Commission indicate that the employer is operating without insurance, the South Carolina Workers' Compensation Uninsured Employers' Fund or any person designated by the director may subpoena the employer or its agents and require the production of any documents or records which the fund considers relevant to its investigation of the claim. The subpoena shall be returnable at the office of the fund or any place designated by it. In the case of refusal to obey a subpoena issued to any person or agent of any employer, a court of common pleas upon application of the fund may issue an order requiring the person or agent of an employer to appear at the fund and produce documentary evidence or give other evidence concerning the matter under inquiry.
(E) If any corporation, as defined in the South Carolina Business Corporation Act of 1988, as amended, or the Statutory Close Corporation Supplement, or any professional association or professional corporation, as defined in the South Carolina Professional Corporation Supplement, which is subject to Title 42, and operating without workers' compensation insurance or as an unqualified self-insurer, fails to pay an award of the Workers' Compensation Commission or any appellate court under Title 42, or lacks adequate capitalization to reimburse the fund for expenses, costs, and benefits paid by the fund, then the stockholders of the corporation, professional association, or professional corporation shall reimburse the fund from their individual assets without regard to any limitation of personal liability granted by any act or common law."
SECTION 2. This act takes effect upon approval by the Governor.